The American legal system has a long and shameful history of mistreating disabled folks, particularly those of us living with mental illness or intellectual disabilities.
For example, Oliver Wendell Holmes, Jr., who served on the United States Supreme Court from 1902 to 1932, is considered one of our greatest judges. After Britney Spears’ tearful court testimony last month, various over-educated pundits were moved to quote memorable language from a 94-year old opinion by Justice Holmes. Among other indignities, Spears testified that her court-appointed conservators refused to let her remove her IUD. In Buck v. Bell, the Supreme Court upheld a Virginia law that authorized the State to surgically sterilize “mental defectives” without their consent. Justice Holmes’s rationale: “Three generations of imbeciles are enough.”
When I was on the Board of Governors of the Washington State Bar Association, the bar commissioned a comprehensive statewide survey of the legal profession. We wanted to understand who made up our membership, and to ask them what it took to succeed as a lawyer in the twenty-first century. We also looked for patterns in how various types of attorneys describe their professional experience.
At the end of the long survey process, our research firm summarized their observations in a lavish PowerPoint presentation to the Board and membership. In their key conclusion about legal careers, the researchers identified four factors that were strongly associated with job satisfaction and career stability: mentoring, spousal support, income, and work/life balance.
For me, the highlights of the survey report were various factoids about statistical anomalies. For example, military veterans were the most likely to be in solo practice among all diversity groups, perhaps in compensation for their prior institutional experience. Unsurprisingly, racial minorities experienced the greatest incidence of social, opportunity, and advancement barriers, and benefited the most from effective mentoring. Surprisingly, parents and other caregiving lawyers reported no significant difference in their hours worked as compared to the overall bar membership. And the income of LGBT lawyers “lagged notably behind the overall median, and was the lowest of all diversity groups, despite comparable years of experience.”
Although I remembered many of these bar membership factoids ten years later, I couldn’t match each statistic to the correct demographic group without tracking down the survey’s Executive Summary. Even the gay tidbits. In fact, only one statistic from the entire survey was so surprising it stuck in my brain after a decade: over one fifth of the bar’s membership identified as disabled.
About 40,000 lawyers are members of the Washington State Bar Association. Statistically that means at least 8,400 attorneys identify as “disabled,” at least on a confidential survey. Nevertheless, I haven’t encountered thousands of disabled lawyers in my three decades of practice. Or hundreds. Or dozens. To the contrary, I can count every visibly disabled Washington lawyer I’ve ever met on two hands, with fingers to spare. And I go to the meetings.
Even if you added openly disabled attorneys like me whose impairments aren’t obviously visible, we would only fill a few tables at one of the grand banquets where the state’s legal community regularly gathers to celebrate much smaller segments of the profession, such as the Vietnamese-American Bar Association, the Korean-American Bar Association, the Middle Eastern Legal Association, and Q-Law: the LGBT Bar Association of Washington. Thousands of disabled Washington lawyers prefer to remain in the closet, avoiding the “disabled” label for as long as possible.
Can you blame them? Here are some disheartening conclusions from the bar membership survey:
· After racial minorities, disabled lawyers reported the second-highest frequency of encountering professional barriers.
· Disabled lawyers faced the highest overall intensity in professional barriers.
· Disabled lawyers experienced more “social” barriers to inclusion than any other group.
I’ve learned from personal experience how the legal system treats visibly or openly disabled litigants and lawyers. Three decades after Congress passed the Americans with Disabilities Act, judges and lawyers continue to display implicit and explicit bias – just like the rest of society.
Fortunately, society slowly makes progress. Britney Spears’s recent court victory – the judge granted her request to appoint a lawyer to represent Britney’s interests – is the first step toward her eventual freedom. Meanwhile, just last month the justices of the Washington Supreme Court unanimously recognized that ordinary people often make biased assumptions about what it means to be disabled.
The case, named In re the Termination of Parental Rights to M.A.S.C., uses initials to protect the parties’ privacy. J.C. is the mother of a five-year-old boy. J.C. has a developmental disability that makes parenting difficult. Her son M.A.S.C. became legally “dependent” and entered the foster system after the State discovered evidence of maternal neglect. The (overextended) social workers in the (overwhelmed) foster system must choose between two different tracks. Sometimes, as with two of my children, the birth parents agree or the State proves that it’s necessary to terminate the original parental relationship and identify adoptive parents. But in most cases, the goal is “reunification.” The State works with the parent to remedy enumerated problems and to develop effective parenting skills.
Whenever the State has reason to believe that a parent may have an intellectual disability, it must make reasonable efforts to ascertain whether the parent does in fact have a disability and, if so, how the disability could interfere with the parent’s capacity to understand the social workers’ offer of services. The State must then tailor its offer of services in accordance with current professional guidelines to ensure that the offer is reasonably understandable to the parent. The State – not the disabled parent – has the burden of figuring out how to accommodate the particular disability in each case.
The question before the Court in In re M.A.S.C. was whether J.C. had a meaningful opportunity to remedy her parental shortcomings before the State took the extreme step of terminating the parental bond. The social worker who interacted with J.C. didn’t think she was disabled because J.C. “was able to ask some questions and follow up on some services, at least to some extent.” According to Justice Mary Yu’s opinion for the Court, terminating the parent-child relationship without actual evidence regarding the scope of the mother’s impairment “would wrongfully reinforce the belief that all disabilities are profound and visible, and that individuals with less visible or invisible disabilities do not succeed solely because they are not trying hard enough”:
We know that this belief is inaccurate because some individuals with relatively severe intellectual disabilities that do require accommodation may nevertheless learn to “mask” their disabilities in ordinary interactions by reading social cues and acquiring significant “adaptive skills.” Nevertheless, the belief that only visible disabilities require accommodation persists as just one example of how parents with disabilities and their children face significant discrimination based largely on ignorance, stereotypes, and misconceptions. We do not condone it.
Here’s how I began my first blog essay four years ago, when I publicly came out as a disabled person living with mental illness:
As Harvey Milk said long ago, the most important thing you will ever do as a gay person is come out. Over the last three decades, our collective coming out has transformed society.
Coming out also transforms individuals. Of course safety and other practical considerations can put reasonable time, place, and manner restrictions on how we do it. But even as an introvert, my own experiences and my observation of other LGBT folks have taught me to err on the side of outing yourself. The truth makes you free.
Most gay, lesbian, and bisexual individuals, some transgender folks, and a minority of people of color can easily “pass” as one of the majority. Each of us must choose whether to publicly identify as part of a marginalized community. The price of our privilege is the tyranny of the closet: the temptations of masks, the compartmentalization of personal relationships, and the warping of our true identities.
When I graduated from law school and moved to Seattle three decades ago, I had already broken with Mormonism but I was still ostensibly straight. Over the next few years I joined the gay community, started dating, and went public as an LGBT advocate. Eventually I was fortunate enough to be offered a job with the ACLU of Illinois as Director of the LGBT Rights/AIDS & Civil Liberties Project. By the time I moved to Chicago with my first boyfriend, I thought I was out of the closet. (Although I should have paid more attention at my farewell reception in Seattle when one of the law firm partners asked whether I was married, and if my wife was moving with me.)
Then I began my new life in Chicago. No one there remembered the old me. Instead, everyone encountered me as “the gay lawyer from the ACLU.” For the first time in my life, I didn’t waste any of my mental energy on multiple personas. With the closet door blown off its hinges I slept better, felt healthier, and thought more clearly.
When I ended my time as a professional homosexual and returned to Seattle, there was no going back. I’m done with closets. As it says on my website,
Coming out as a gay man decades ago saved my life and gave it meaning. Now I am coming out again, this time as a person living with mental illness, and again trying to make the world a better place for everyone.
The personal is political. But it can remain intensely personal as well.
Like Harvey Milk, I’m convinced that coming out of the closet transforms LGBT individuals and society for the better. Nevertheless, I recognize that everyone must make that choice for themself, in their own time and in their own way. We don’t all need to be professional homosexuals, drag queens, or flamboyant TikTok influencers. Even in our social media era, you should be able carve out your zone of personal privacy.
In hindsight, I recognize limits to the analogy between sexual orientation and disability status. The substantial proportion of lawyers and of normal people who live with disabilities have very good reasons to remain quiet – such as preserving a measure of autonomy, dignity, and privacy in the face of relentless challenges, even as they try to focus on their health. In particular, as the bar survey revealed, disabled individuals routinely face intense social barriers. Regardless of our best intentions, each of us finds it difficult to “reach out to someone with an off-putting disability, particularly someone living with mental illness or another handicap that interferes with smooth communication.”
In my case, publicly telling my story was an essential part of my recovery from the debilitating impact of traumas and triggers. Meanwhile, my only tool for creating change is my knowledge of the legal system (plus a mountain of incriminating evidence). Several years into this journey, I’m disappointed to report that I’m still a disabled middle-aged unemployed gay single dad trapped in a small town, waiting for some judge to finally listen to the truth.
I’m frustrated and lonely. I still pull my hair out. I read a lot, and write even more. I hug kids and dogs. Starting tomorrow, I’ll finally be able to escape to Vancouver and recharge my batteries once again. I have good days and better days. I struggle with the pace and uncertainty of various legal, financial, and other processes. I recognize that no one really wants to listen when you speak truth to power, particularly if you’re disabled. And when you use too many words.
Still, I’m more privileged than most people, including most disabled people. My health is much improved. I have amazing resilient children, and the safety net of loving parents nearby. I recognize I’ve joined a dialogue about including disabled people that has been going on for decades – and a movement that in many ways still hasn’t progressed much further than where LGBT folks were when I began advocating for that community over two decades ago.
So I will continue writing and speaking out about injustice. Because someone has to.
July is Disability Awareness Month. As usual, there were no parade or flags. But there were encouraging rulings from the Washington Supreme Court and from the California conservatorship court. If a disabled single mother like J.C. or Britney can finally find a judge who will listen to her story, maybe there’s hope for the rest of us.